The Social Network

The Virtual Workplace in 2011

David Kight

On The Agenda

• Spencer Fane 2011 Survey Results

• The NLRB and You Make the Call

Questions We Get from Clients

• QR Codes and Microsoft Tags

• Social Media in Litigation

Results of the 2011 Spencer Fane

Social Media Survey

Spencer Fane Survey

In 2009, Spencer Fane started an annual Social Media Survey. We survey companies – primarily human resources employees - on their use of social media along with its impact in their organizations.

Spencer Fane Social Media Survey

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LinkedIn Facebook Twitter

Pe

rce

nt

2009 2010 2011

• Do you personally use LinkedIn, Facebook, Twitter, MySpace?

• Answers are % of those who responded yes.

Organizations Tightening Use?

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70

YES

Pe

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2009 2010 2011

Does your organization permit employees to access online social media networks from a company computer or issued device?

Organizations Tightening Use?

05

101520253035404550

YES

Per

cen

t

2009 2010 2011Does your organization encourage employees to access online social media networks from a company computer or issued device?

Issues With Social Media

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YES

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nt

2009 2010 2011

Has your organization encountered an issue involving an employee’s use of social media in the workplace?

Issues other than Excessive Use

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20

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40

50

60

Yes No I don'tknow

Pe

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2010 2011 If you encountered a problem with an employee and social media in the workplace was it for something other than excessive use?

Monitoring

Does your organization monitor internet usage, keystrokes or bandwidth usage?

0

50

100

Internet Use Keystrokes Bandwith

Per

cen

t

2010 2011

Connecting on LinkedIn

52%

23%

25%

Yes No I don't know NEW FOR 2011!

Does your organization permit employees connect with customers and clients through LinkedIn?

“Friending” Between Direct Reports

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10

20

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60

70

Report

to

Report

from

Neith

erBoth

I don't

know

NEW FOR 2011!

Does Your Organization Have A Social Media Presence?

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Yes

Pe

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Facebook Twitter Wikipedia

NEW FOR 2011!

Does Your Organization Have A Social Media Policy?

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Yes No I don't know

NEW FOR 2011!

The Social Media Lawyers

Initiated in 2011 to provide a place where employers can get quick questions to workplace questions related to social

media in the workplace.

The National Labor Relations Board and

Social Media

Social Media & Labor Laws

The National Labor Relations Board has now begun taking unfair labor practice charges related to employers disciplining employees for their social media comments.

***Beware that this applies even if you are non-union.****

Enforcement Power by the NLRB

• What remedies – if any – are available to the NLRB if an employer violates one of the rules?– Backpay to a fired worker;– Reinstatement;– Court Injunctions;– Ordering an Employer to Bargain with a

Union;– One of the few agencies that has the ability

to investigate, rule, and seek enforcement.

18

You Make the Call #1

Five employees do not like their co-worker. They believe the co-worker is a slacker and fakes illnesses to get out of work. They post derogatory messages on her Facebook page containing obscenities and openly expressing their negative feelings toward her. The victim complains. Following an investigation, the five employees are discharged for harassment under the company’s zero tolerance policy. Any problem with the discharges?

You Make the Call #1

Most likely. Last week an administrative law judge of the Board held that the five employees were engaging in concerted protected activity for which they could not be discharged. The judge held that the Facebook postings were no different than “water cooler” talk and could not be interfered with. He held that even though the conversations were not directed to the employer, because they involved terms and conditions of employment they were protected. The judge ordered the employees reinstated. An appeal to the Board is pending.

You Make the Call #2

Employer is an ambulance service. Employer had a policy prohibiting disparaging comments when discussing the company or an employee’s superiors. An employee is asked by a supervisor to prepare an incident report about a customer complaint about the employee. The employee asked for a union representative to be present during the preparation of the report. She did not get the union rep. Employee goes home and makes a negative post about her supervisor on her personal Facebook page which drew supportive comments from co-workers and further negative comments about the supervisor. Employee is fired. Was it permissible?

You Make the Call #2

According to the NLRB, no. The policy prohibiting negative comments was unlawful as likely to prohibit an employee from engaging in lawful activity.

The NLRB further found that a discussion about an employer’s refusal to comply with an employee’s Weingarten right and discussing a supervisor on Facebook was protected activity.

The termination was unlawful.

You Make the Call #3

Employee is a reporter. His employer encourages him to open a Twitter account and use twitter to get stories out. Employee gets a twitter account. Employee’s twitter biography mentions that the employee is a reporter and names his employer. Employee sends out a tweet critical of the newspaper’s copy editors. Employer questions the employee and orders him not to air internal grievances or comment about the paper publicly. Employee then posts derogatory comments about homicides in the city and tweets negatively about a tv station. Employer terminates employee because of his repeated tweets damaging the newspaper’s good will. Was the termination lawful?

You Make the Call #3

According to the NLRB, yes. The reporters tweets were not related to his wages, hours or working conditions. In addition, he was not tweeting in order to involve others in issues related to employer. Rather, he ignored his employer’s warnings about inappropriate tweets.

The termination was lawful.

You Make the Call #4Employer is a restaurant with an unwritten policy that waitresses don’t share tips with the bartenders even though the bartenders help serve food. A bartender discussed the issue with a co-worker who agreed that it “sucked.” Several months later in Facebook posts, the bartender complained to a relative that he was doing waitresses work without the tips. He called the restaurant’s customers “rednecks” and said he hoped that they choked on glass as they drove home drunk. He didn’t discuss the posting with co-workers and none of them responded. The owner sent a facebook message to the employee telling him his services were no longer needed. Was the termination lawful?

You Make the Call #4

According to the NLRB, yes. Although the postings concerned terms and conditions of work, the employee did not discuss the posting with co-workers and none of them responded to the posting. There were no employee meetings or any attempt to initiate group action concerning the policy.

The termination was lawful.

You Make the Call #5

Employer provides emergency and non-emergency medical transportation and fire protection services. Employee is a dispatcher. A Senator representing the state in which the employer was located announced some fire districts were getting federal grants. Employee posts on the Senator’s “Facebook Wall” that her employer only got its contracts because it was the cheapest in town, paid less than the national average and only two trucks for an entire county. She also posted that the company sent a crew who was unable to perform CPR to respond to a cardiac arrest call. Employer terminates the employee for public posting of disparaging remarks and revealing confidential information. Was the termination lawful?

You Make the Call #5

According to the NLRB, yes. The employee did not discuss her posting with any other employees, including her husband who was an EMT. There were no employee meetings regarding the posting. The employee also did not use the postings as a way to complaint to management. The employee admitted that she did not expect the Senator to assist her employment situation.

The termination was lawful.

You Make the Call #6Employer was a retail store operator. Employee was a customer service employee. Employee posts on Facebook critical comments about a new Assistant Manager. Employee noted “tyranny” at the store and that the Employer was going to get a wake up call when people quit. Co-workers posted asking why he was “wound up.” Employee respond by calling the Assistant Manager a “super mega puta” and complained about discipline. One co-worker posted a “hang in there” kind of comment. Store Manager gave the employee a one-day suspension which prohibited promotion for 12 months. Was the discipline lawful?

You Make the Call #6

According to the NLRB, yes. The postings were expressions of an individual’s gripe. They expressed only frustration with his individual dispute and did not contain language suggesting group action. The termination was lawful.

Questions

• How far can an employer go relative to investigating an employee / former employee’s social media?

• What if an employee leaves his or her Facebook account open – can an employer access that page?

• Can an employer demand that the employee provide his or her password to their social media page during employment?

The Total Package of Policies

• Use of Social Media Policy• Use of Computers, E-Mail, & Internet• Use of Cell Phones and Other

Electronic Devices (including while driving)

• Prohibition of Electronic Recordings• Ownership of Electronic Property and

Its Contents

Questions We Get From Clients (and

Answers)

Questions We Get From Clients

Can an employer prohibit an employee from being a Facebook friend with a client?

Couldn’t an employee argue they were friends before work?

An employer generally has the right to provide policies which govern the workplace.  It is permissible for an employer to have a specific policy which forbids employees from “friending” clients.  It might be virtually impossible to enforce and might engender bad feelings from a client, but an employer is generally free to do so.  See the earlier answer on off-duty conduct in the work place.  As for the friend argument, an employee certainly can make this argument and, for that reason, employers need to consider whether it is a good idea to have this restriction.  Some employees and clients might take offense and this could present a practical problem.  From a legal perspective, an employee can make this argument but that does not change the fact that an employer is generally free to provide policies to govern the workplace.

Questions We Get From Clients

Our company has a Facebook page and Twitter site. How would you guide us regarding postings or comments by employees – even on their own time?

This is interesting issue that many employers are likely facing, or at least will face as more and more businesses embrace the marketing power that social networking sites offer.  We would suggest that 3 principles guide employers.  First, employees generally have a duty of loyalty to their employers.  Employees should be reminded of this duty and, in the best case scenario, be required to sign an acknowledgement of this duty before being permitted to post comments on social networking sites.  Second, employers should monitor their “pages” or accounts with social networking sites.  A policy means nothing unless it is enforced.  As a result, employers need to be prepared to take action to counsel or discipline employees that disparage their employers on a social networking site.  Third, employers should seek counsel about whether employee postings on behalf of the employer on a social networking site might constitute compensable time worked, even if you believe that such postings are voluntary and off duty.  Wage and hour issues are much more difficult than many might think and cannot be overlooked.

Questions We Get From Clients

If an applicant provides a link to their Facebook page on their resume and the page contains their views on litigation and politics, can we look at it and use it?

If any applicant provides a link to a Facebook page, we believe that there is a strong argument that the applicant has invited the prospective employer to view the site.  Facebook may reveal a lot about a person, including their judgment (or lack of judgment). However, making an employment decision based on an employee’s protected activities – such as filing a charge of discrimination against an employer or pursuing a discrimination lawsuit against an employer – can be a violation of an applicant’s rights under federal and state laws.  Accordingly, if such information is discovered, it should not be considered in the evaluation of the applicant.

Questions We Get From Clients

We have had trouble getting previous employees to change their “title and company” on LinkedIn, i.e., our old CEO still lists himself as a “current CEO.” Is there anything we can do to get them to change it? LinkedIn won’t change it.

There is very little you can do to convince a non-employee to correct a dated (and now incorrect) status.  Many people believe that it is easier to get a job if you are already employed as opposed to being unemployed, so we expect this type of problem will become more common.  Other than a letter to the former employee requesting that they change the status line, we see nothing that an employer can do to force the change other than continuing to contact LinkedIn.

Questions We Get From Clients

Can an employer be liable for the harassing Facebook posts of one employee toward another if the posts are made off-duty and off-premises?

This represents a real quandary for employers.  First, assuming the employer is unaware of the posts, we do not believe that an employer will generally be held liable for the off-duty conduct of one employee against another. Second, if the employee that is the subject of the posts complains at the company about the posts, the question would be whether or not the employer could police off duty conduct if it wanted to.  The employer may be left with simply counseling the posting employee about conduct in the workplace.  If the posts become criminal or threatening, the non-posting employee should be encouraged to seek assistance with law enforcement.

Questions We Get From Clients

Can you include the language in a social media policy that says “all electronic media currently in use today and any other electronic media yet to be developed” when addressing what is and is not acceptable in the workplace?

Certainly, you can use that language, but the question does suggest that the policy isn't reviewed regularly.  We recommend a routine review of this policy at least annually.  It is not possible to keep ahead of every development in this area.

Questions We Get From Clients

What, if any recourse, does a school district or university have if students post lies about teachers or administrators on personal social media accounts?

This question presents a very difficult situation that requires attention to the specific facts.  There has already been litigation over such issues, where a student was suspended by a public school after she created a Facebook page to criticize a teacher.  In that case, the court refused to dismiss the action and found that the student had engaged in speech protected by the First Amendment in creating the page outside of school.  Significantly, there was no evidence that the Facebook page and any items posted on the page caused the school any sort of disruption.  Given this case, school districts should be very careful in addressing any comments or information students post away from school.  That said, if the posts from a student are simply not true, and more than just expressions of opinion, such posts may rise to the level of being defamatory.  Moreover, the posts may cause disruptions in schools.  In those circumstances, a school may be able to take action to suspend or otherwise discipline a student.  What a school may do ultimately depends on the facts.  Legal counsel is also likely a good idea to evaluate a school’s options.

Questions We Get From Clients

Regarding LinkedIn, can a firm prevent a former employee from recommending someone?

There is little that you can do to prevent a former employee from recommending another former employee or even a current employee either in writing or on any social media site.  If the former employee's comments are false or misleading, you can always notify the former employee of your concerns, but other than that, there is little you can do.  Occasionally, a letter from your counsel could encourage the former employee not to make recommendations.

Questions We Get From Clients

If an employer pays for the use of the internet but it is the employees phone, can the employer ask them not to use social networking?

An employer in these circumstances could very easily request that an employee refrain from using their phone for social networking, especially during normal work hours.  An employer could also very easily condition its payment of Internet or data services on a mobile device on an employee’s agreement not to use the device for social networking.  However, there are at least 2 problems with this restriction.  First, it is unlikely that an employer can effectively enforce or monitor this restriction.  The employer does not have an ownership interest in the device and likely does not have the necessary access to monitor usage.  Second, what constitutes “social networking” is rapidly developing.  While Facebook pretty clearly falls within the definition, some might not think of certain other online sites or sources as “social networking.”  As a result, the potential for misunderstandings with employees seems high.  With this in mind, in most states, it is likely permissible for an employer to prohibit the use of data services for social networking applications on a mobile device during normal work hours.  It will be difficult, if not impossible, to enforce, but it is likely permissible to have this restriction.

QR Codes and Microsoft Tags:An easy way to

share.

QR Codes and Microsoft Tags

• Microsoft Tag: High Capacity Color Barcode (HCCB) is the name coined by Microsoft for its technology of encoding data in a 2D “barcode” using clusters of colored triangles instead of the square pixels traditionally associated with 2D barcodes

QR Codes and Microsoft Tags

• A QR Code is a specific matrix barcode (or two-dimensional code), readable by dedicated QR barcode readers and camera phones. The code consists of black modules arranged in a square pattern on a white background. The information encoded can be text, URL or other data.

So, how could these QR Codes and

Microsoft Tags be used in the workplace?

QR Codes and Microsoft Tags

All is not what it seems…

To: Jan (at home)

From: Dave

Date: March 1, 2011

Re: Dance Lessons tonight for Kara

Can you take her tonight?

All is not what it seems…All is not what it seems…

All is Not What it Seems

The key guy at SmithCo is Brad Johnson. Our rate per box is $2.50. Our

supplier - Yan Systems of Taiwan (Jerry Yee is the contact) gets it to us for

$1.10 per box.

All is not what it seems…

To: Bill Hanrahan

From: Aaron Smithson

Date: March 1, 2011

Re: Just Over Heard Nancy Discussing Oklahoma Exhibition

Had No Idea She was a fan.

All is not what it seems.

Just Over Heard Nancy Discussing Oklahoma Exhibition = johndoe

Just spoke to Alan. He’s having an affair with Glenda in the copy

center. He’s getting her to provide him copies of the executive reports when she copies them. We’ll get

those before we resign

This is a Microsoft Code with a password connected to it.

QR Codes and Microsoft Tags

• While they can provide links to web addresses, they can be used to provide information to others.

• Does your social media policy or your internal policies address the use of QR codes or similar encrypting mechanisms?

• Could you tell if someone generated a QR code with your pricing or client information and then took a picture with their smart phone?

Social Media in Litigation

Questions

• How far can an employer go relative to investigating an employee / former employee’s social media?

• What if an employee leaves his or her Facebook account open – can an employer access that page?

• Can an employer demand that the employee provide his or her password to their social media page during employment?

Stored Communications Act

• Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 9/25/2009)– Employer violated the SCA when it used an

employee’s log-on information to access a chat group on Myspace.com, even though the employee had provided her log-on information to her managers.

Stored Communications Act

• Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548 (S.D.N.Y. 2008)– Employer violated the SCA and a former

employee’s privacy by accessing employee’s personal e-mail accounts with username and password stored on computer.

Expectation of Privacy

• Shefts v. Petrakis, 758 F.Supp.2d (C.D.Ill, 2010)– Based on Employer’s policies, employee did

not have a reasonable expectations of privacy in communications sent over employer’s network.

Expectation of Privacy

• Thygeson v. U.S. Bancorp, 2004 WL 2066746 (D.Or. 9/14/2004)– Based on the employer’s policies, the

employee did not have a reasonable expectation of privacy in communications sent over employer’s network.

Expectation of Privacy

• Smyth v. Pillsbury, 914 F.Supp. 97 (E.D. Penn. 1996)– Employee did not have a reasonable

expectation of privacy in e-mails exchanged with supervisor over company e-mail system despite employer’s assurances that the communications would be confidential and privileged.

Expectation of Privacy

• Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010)– Employee had a reasonable expectation of

privacy in e-mails exchanged with her attorney via her personal Yahoo! Mail account while using a company laptop, even though employer’s written policy stated that the company may access “all matters on the company’s media systems and services at any time.”

Expectation of Privacy

• In February, 2011,the Maryland Dept. of Public Safety and Correctional Services – following criticism from the American Civil Liberties Union – suspended its practice of asking applicants to provide social media account usernames and passwords for use in employee background checks.

Discovery of Social Media Content

• E.E.O.C. v. Simply Storage Management, U.S. Dist. Court for S.D. Indiana (May 11, 2010). http://bit.ly/c58NxX

• In this case, the employer was sued for sexual harassment by two employees.

• In discovery, the employer sought production of photographs and videos as well as updates and messages on their Facebook and Myspace pages.

• The EEOC objected arguing based on privacy and an attempt to embarrass the plaintiffs.

• The employer countered that the EEOC had placed the emotional health of the woman at issue by claiming “medical treatment” stemming from alleged harassment and claiming depression from post traumatic stress disorder.

Discovery of Social Media Content

• The court ruled:– “It is reasonable to expect severe

emotional or mental injury to manifest itself in some SNS content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.”

Discovery of Social Media Content

• Crispin v. Christian Audigier, Inc., U.S. Dist. Court for the Central District of California (May 26, 2010)

• http://scr.bi/a11m59• Employer sought postings on Facebook,

MySpace and Media Temple.• Court quashed a subpoena to the extent it

sought private e-mail messages through the site as protected under the Stored Communications Act.

Discovery of Social Media Content

• Barnes v. CUS Nashville, 3:09-cv00764, U.S. Dist. Ct. M.D. of Tenn.

• Plaintiff claims she fell from a bar at a “Coyote Ugly” saloon in Nashville. She argued that the bar was wet and slick and when she tried to climb onto the bar hit her head.

• Defendant subpoenaed Facebook for plaintiff's Facebook information, including photos of plaintiff and her friends dancing on the bar.

Discovery of Social Media Content

• Barnes v. CUS Nashville, 3:09-cv00764, U.S. Dist. Ct. M.D. of Tenn.

• The Defendant subpoenaed the friends of the Plaintiff for their pictures of the Plaintiff on the bar.

• The Plaintiff moved to quash.

Discovery of Social Media Content

• The court ruled:– “In order to try to expedite further discovery regarding

the photographs, their captions and comments, the Magistrate Judge is willing to create a Facebook account. If Julie Knudsen and Michael Vann will accept the Magistrate Judge as a “friend” on Facebook for the sole purpose of reviewing photographs and related comments in camera, he will promptly review and disseminate any relevant information to the parties. The Magistrate Judge will then close this Facebook account.”

Discovery of Social Media Content

Contact Information

Dave Kight

816-292-8303

dkight@spencerfane.com